On January 3, 2018, as part of his annual State of the State address to the New York legislature, Governor Andrew Cuomo announced a set of proposed reforms that he described as an “overhaul” of New York’s criminal legal system. While overhaul may be a strong descriptor, Governor Cuomo’s proposals address an important but often overlooked issue in criminal justice reform: the harm caused to low-income communities when financial interests pervade our carceral state.
In his preface, the governor acknowledged that New York has “a two-tiered system where outcomes depend purely on economic status.” Two of his five proposed reforms—the de-emphasis of money bail and strengthening of civil asset forfeiture protections—would reduce the revenue private companies and law enforcement agencies garner at the expense of those directly-impacted by the criminal legal system.
Bail. Under the current system, the court can set money bail for any person charged with a crime in New York that she must pay to be released from custody. The bail deposit is meant only to serve as a guarantee to the court that the accused will return for adjudication and is returned upon the resolution of their case. Yet, often people cannot afford to post bail and remain incarcerated until their case is resolved. In 2015, 67 percent of those incarcerated in jails around New York state were awaiting trial. Prison Policy Initiative estimated that the national median annual income of someone in jail due to inability to post bail in that same year was roughly $15,000.
When pretrial release depends on one’s ability to pay, cash poor defendants and their families are often forced to turn to the predatory bail bonds industry for their freedom. Unlike the courts, local bail bonds companies demand a non-refundable portion of the bail amount (typically 10 percent) in exchange for a promise to the court to pay the full amount if the accused fails to return to court. How can these small businesses make such a guarantee over and over again? They are backed by major insurance companies, which together return an annual profit to the tune of $2 billion insuring bail bonds.
Governor Cuomo’s bail reform proposal eliminates money bail for those facing misdemeanor or non-violent felony charges. Instead, they would be released unconditionally or subject to non-monetary pretrial conditions. Those charged with violent felonies could still be assigned money bail, but would also need to be given an alternative bail option, such as an unsecured or partially-secured bond. This means that any person accused of a crime in New York, who is not outright held on remand or some other detainer, would have a release option that does not require access to cash. The impact of this reform would be significant; in 2016, for example, 72 percent of just New York City’s pretrial detainees had bail set.
This reform is a major step forward in reducing the reliance of low-income communities on the bail bonds industry that preys on their desperation. But the proposal begs an obvious question: why not eliminate bail bonds, or even money bail, altogether? Other states are moving in this direction as they recognize that the bail bonds system favors those with ready access to cash and exploits those without. New York should either abolish money bail entirely or, at the very least, ban the bail bonds industry. In fact, New York City might just do that.
Civil asset forfeiture. Like the use of money bail, current civil asset forfeiture practices disproportionately extract resources from low-income and minority communities. However, civil asset forfeiture enriches government agencies rather than private companies.
In New York, law enforcement may seize property—before a conviction or even an arrest—if they suspect that it was involved in criminal activity. Seized property is then “forfeited” after a confusing legal proceeding in which a judge must only find the suspicions of criminal involvement correct by a preponderance of the evidence. The property owner has no right to counsel in the forfeiture proceedings, not only because it is a civil proceeding, but also because it is not the owner, but rather the seized property that is on trial. A 2017 report by the Southern Poverty Law Center revealed that nine out of ten forfeitures go uncontested.
Particularly troubling are the financial incentives lurking behind civil asset forfeitures. When assets are forfeited, a large portion of the sales proceeds go directly to the law enforcement agencies to support day-to-day operations, retirement pensions, and even extracurricular activities, causing them to develop a dependency on these confiscated assets. This revenue scheme calls into question the legitimacy of these seizures. In 2014, Steven L. Kessler, the former head of the Bronx District Attorney's forfeiture unit, found that, in 85 percent of the New York City Police Department’s civil asset forfeiture cases, the property owner was never criminally charged. Across New York state, police brought in $76 million that same year, or more per capita than all but one other state.
Under Governor Cuomo’s proposed legislation, civil asset forfeiture would be prohibited without an accompanying arrest, strengthening the legal standard for seizure. If the property owner is acquitted or her case dismissed, law enforcement must return the seized assets. The proposal would also enhance reporting requirements with the stated intention of studying the problem. However, such requirements would also likely help ensure compliance with the new guidelines and prevent questionable seizures.
The proposal is certainly heading in the right direction, but hardly goes far enough. First and foremost, law enforcement agencies should not be permitted to keep the sale proceeds from their asset seizures to eliminate inherent perverse financial incentives. Additionally, seizures should not be permitted until after a conviction has been secured so that property owners are not unjustifiably disposed of their assets prematurely. To the same end, in forfeiture proceedings, the government should carry the burden of proof and the standard of proof should also be raised to beyond a reasonable doubt. Finally, New Yorkers should have access to legal representation or advice that helps them intervene as property owners in these civil cases.
Overall, the proposed reforms outlined in Governor Cuomo’s State of the State address are encouraging. The decommercialization of the criminal legal system should be an urgent priority, and thus these bail and civil asset forfeiture reform proposal are especially promising. But as the New York legislature considers these reforms, it should go even further. If New York is truly to be “a beacon of equality and social justice,” Governor Cuomo’s reforms must be embraced and expanded.